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A JOINT POSITION PAPER OF MUNICIPAL GOVERNMENT OF VICTORIA AND MANGYAN MISSION ON THE PROPOSED MINDORO NICKEL PROJECT BY INTEX RESOURCES For the record, the underlined signatories manifest our vehement objection to the resolute attempts of Intex Resources to proceed with the operational phase of the mining project, despite the long-standing opposition of the local government units, the Church and the civil society groups both in Oriental and Occidental Mindoro.
We fully support and enforce our provincial mining moratorium calling for a stop to the conduct of public hearing in view of completing the EIA process to secure the Environmental Clearance Certificate (ECC) that Intex needs to commence the environmentally-critical project within our fragile forest ecosystem, our critical watershed, and ancestral domain of the Mangyan indigenous peoples. Provincial Ordinance No. 001-2002 declares that "it shall be unlawful for any person or business entity to engage in land clearing, prospecting, exploration, drilling, excavation, mining, transport of mineral ores and such other activities in furtherance of and/or preparatory to all forms of mining operations for a period of twenty-five (25) years." (emphasis supplied).The provincial ordinance is not only a local legislation but it is actually implementing Sections 16, 26 and 27, and 447 of the Local Government Code of 1991. Since the conduct of EIA, its related activity of Public Hearing and issuance of ECC are considered understandably as forms of preparatory activities required to start mining operation, we join the Provincial Government of Oriental Mindoro in calling for the EMB and EIA Review Committee to respect the will and decision of the people and to cease and desist from conducting activities in furtherance of mining operation. The Provincial Government had already tried to enforce the provincial ordinance during the Scoping Activity at Villa Cerveza, yet Intex and EMB/EIARC opted to defy it by not even recognizing the protestation of the Provincial Government in your EIS Report, and in continuing on with the process. We therefore respectfully remind you that by holding the Public Hearing and issuing the ECC, you will be again deliberately and wantonly violating our moratorium ordinance. The present procedural process under the Revised Procedural Manual for DAO 03-30, separating the decision-making of the LGUs outside the sphere of EIA process is legally questionable since Section 70 of the Mining Act of 1995 explicitly prescribes that Section 26 and 27 provisions of the Local Government Code of 1991 should be made an indispensable part of the EIA process. Thus, prior consultation and approval of the concerned local government units are to be sought. It is in this context that we register our strong opposition against the Mindoro Nickel Project of Intex Resources on the following grounds, and considering the socio-environmental and legal issues at stake: 1.LGUs HAVE THE RIGHT TO VETO MINING BY ENFORCING THE MINING MORATORIUM ORDINANCES BOTH IN THE PROVINCE OF ORIENTAL MINDORO AND IN THE MUNICIPALITY OF SABLAYAN, OCCIDENTAL MINDORO Ö The argument of the mining proponent in their insistence that it is not covered by the moratorium is that the MPSA was signed earlier before the ordinance on moratorium was enacted in 2002, therefore it cannot be valid for a law cannot be retroactive in its application. But it should be noted that there is only one MPSA that was approved on December 7, 2000 (not 1997 as they erroneously claim), and that is MPSA No. 167-2000-IV, covering only an area of 2,290.6713 hectares. Ö Intex has other application, AMA No. IVB-97, located in Barangay Villa Cerveza, Municipality of Victoria. This is undeniably covered by the moratorium ordinance of Oriental Mindoro. Intex has other applications under the jurisdiction of Barangays Pag-asa and San Agustin, Municipality of Sablayan, Occidental Mindoro, namely, AMA No. IVB-101 and AMA No. IVB-103. These areas are also covered by the same prohibition on mining because the Municipality of Sablayan had also passed General Ordinance No. 2007-GO03B declaring a 25-year moratorium on large-scale mining activities within their municipality. Ö It is also argued by Intex that the Mining Act cannot be superseded by a local legislation, in this case the mining moratorium ordinance. But as already argued above, the mining moratorium of the provincial government is clearly in pursuance of Sections 16, 26 and 27, and 447 of the Local Government Code of 1991. Ö The Supreme Court, in one of its landmark decisions on this matter, in Province of Rizal vs. Executive Secretary, G.R. No. 129546 (December 13, 2005), the Court en banc acting unanimously held that the implementation of a national project affecting the environmental and ecological balance of local communities without compliance with the consultation and prior approval requirements was illegal.It therefore put a stop to the project with finality:"Under the Local Government Code, xxx two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian.Absent either of these mandatory requirements, the project's implementation is illegal." 2. SELECTIVE IDENTIFICATION OF DIRECT AND INDIRECT IMPACT AREAS Ö "Stakeholders" is defined in the Revised Procedural Manual for DAO 03-30, as "entities who may be directly and significantly affected by the project or undertaking including the Proponent, government agencies who have mandates over the project, local government units who have jurisdiction over the project, local communities who may be affected by project impacts, locally based or locally active NGOs/Pos within impact areas and other public sectors who may be potentially affected by the project as defined by the findings of the environmental impact assessment of the project." Ö The Proponent selectively tried to reduce the impact areas and communities to smallest scale possible, while excluding sectors, communities and local government units that have expressed long standing opposition to the project, but are also direct stakeholders and can be significantly affected by the project. Ö This is to register our position that the municipalities of Victoria, Naujan and the city of Calapan, and their respective Barangays in the flood-prone areas be included in consideration of impact areas. The argument for considering them as impact areas was articulated in the letter of Governor Arnan C. Panaligan and Bishop Warlito I. Cajandig to then DENR Secretary Angelo Reyes, dated 18 October 2006: "The source of the headwaters of Aglubang River is precisely the mining site of the Mindoro Nickel Project. No other justification or explanation on the part of mining proponent can alter or hide this fact. The strong rains that fell in the Aglubang watershed area, the proposed mining site of the Mindoro Nickel Project, caused the overflowing of Aglubang River which in turn submerged Calapan City and the towns of Naujan and Victoria. This fact alone proves the fragility of the environment of the Aglubang watershed area where the mining contract area is located." Ö The proposed mining site is located at the upper portion of Barangay Villa Cerveza. It is also part of the central range of Mindoro Island which serves as a contiguous watershed to more than 15 river systems, draining to the northeast side of the rich agricultural plains of Calapan, Naujan, and Victoria of Mindoro Oriental.In particular, the mining site is within a major watershed of Mag-asawang Tubig and it is one of the major river systems in Mindoro Oriental. The mining operation is directly anchored on the Mag-asawang Tubig river system, and should the mining operation of Aglubang/Intex pushes through, Mag-asawang tubig River will be directly affected.Likewise, all the communities to which this river passes through would be affected, primarily the farming community.Farmers are diverting some of the river water to irrigate their farms.If and when the river water becomes polluted or carries some substances detrimental to the crops, this will be reflected to the quality and quantity of the harvest of the farmers.Those who depend on the river and its tributaries for irrigation would also be affected. Ö CRITICAL WATERSHED AREA SHOULD BE A "NO GO ZONE" FOR MINING Ö The rate of degradation of the forest in the island of Mindoro is alarming. From the 967,400 hectares of forest in the 1950s, the remaining forest cover at present is only about 50,000 hectares. The significant forest lost of 95% contributed to the instability of the environment both in the upland and lowland areas. Ö In a letter submitted by then Secretary Heherson Alvarez to President Gloria Macapagal-Arroyo dated 11 April 2001, he underlined the fact that the mine site includes a protected watershed. In fact, he mentioned that "in the investigation of the original application of Mindex's application for an Exploration Permit, the report of the Regional Technical Director for Forest Management Services dated 13 May 1996 clearly indicated that indeed the large area for exploration falls within the Mag-asawang Tubig Watershed reforestration Project, the Proposed Watershed Reservation, Established Reforestration of the DENR . . ." Ö On October 5, 2004, about seven months after the reinstatement of the MPSA of Crew, Congressman Rodolfo G. Valencia filed House Resolution No. 308 "Urging the DENR to Uphold Its Notice of Cancellation/Termination of Aglubang Mining Corporation's MPSA No, 167-2000-IV," on the ground that the intended mining concession site is a protected area and a classified watershed as declared and identified in its Provincial Physical Framework Plan, among others. Ö Section 19, f of the Mining Act of 1995 provides that provincial or municipal forests, and watershed areas should be closed to mining applications. 4. EROSION, FLOODING AND SOIL MANAGEMENT METHODS Ö "Mining will expose areas to the risk of erosion and also the establishment of overburden stockpiles will create additional areas prone to erosion."[1] Ö The rehabilitation phase through tree-planting will not be possible, as argued by the position paper of Dr. Angelito Bacudo, President of Mindoro State College for Agriculture and Technology: "The removal of 6 meter deep laterite clay below the surface soil will vacate the area of the soil which is imperative for plant growth and development. The surface soil alone, although returned after mining, will not be enough to sustain plant growth and development as this is usually a very thin layer which is prone to erosion. Although to be planted with trees after mining, there is a very minimal possibility that these tress will grow and develop. As experts claim, it takes hundred of years before a thin layer of soil is naturally developed. Thus, the possibility of having a vast barren soil after the mining activities will soon be a reality and no doubt, the succeeding generations will be at a stake."[2] Ö Then DENR Secretary Heherson Alvarez in his article in Philippine Star, dated November 13, 2001, asserted that: "The project site forms part of the recharge area of watershed where the headwaters of Mag-asawang Tubig emanates. The extraction of the Nickel ore deposits by strip mining method . . . will aggravate risk of reducing recharge capability and increasing siltation, even with Best Mining Practice . . . Downstream of the Magasawang Tubig lies vast irrigated ricelands from where thousands of Mindorenos are dependent for their food security. No amount of mitigating measures can take away the risks faced by these areas. Ö The mining site within the municipality of Victoria, Oriental Mindoro falls under climate Type IV, a climate classification with no pronounced wet and dry season, and is characterized by continuous or ever expected rainfall. The presence of mining operation will further aggravate the flooding incidence.[3] 5.FOOD PRODUCTION AND SUSTAINABLE DEVELOPMENT THRUST OF ORIENTAL MINDORO Ö "Mining is likely to damage the island's important food production capacity, its fisheries and its eco-tourism potential and is clearly inconsistent with its sustainable development plan. In the light of other factors, including seismic and climatic conditions, the proposed Intex Nickel project has the potential to cause massive damage for the water catchment area, impacting up to 40,000 hectares of rice producing lands and exasperating flooding of towns and villages."[4] Ö In July of 2001 the Department of Environment and Natural Resources, under the new government of Gloria Macapagal-Arroyo, revoked the mining concession on environmental and social impact grounds. Then DENR Secretary Alvarez explained his decision and that of President Arroyo as being based on the need to protect critical watersheds, to protect the food security of the Mindorenos (local communities), and to respect the social unacceptability of the project. "The Mindoro Nickel Project is one case where sustainability is bound to fail . . . President Arroyo is fully aware of the situation . . . what does it gain the nation to be short sighted and merely think of money, when an irreparable damage to the environment will cost human lives, health and livelihood capacity of our farmers and fisherfolks endangering the food security of our people."[5] Ö The Sangguniang Panlalawigan Resolution No. 259-99 unequivocally stated that: the "Mindoro Nickel Project is incompatible with the sustainable development agenda of the Provincial Government which is anchored on food security, eco-tourism and agro-industrial development, much less, the development of mining industry is logically being ruled out in the Physical Framework Plan of Oriental Mindoro which stresses more on the environment-related strategies for sustainable land use." 6. BIODIVERSITY CONSERVATION IN CASE OF HABITAT LOSS OR DISTURBANCE Ö The 2002 Final Report on Philippine Biodiversity Conservation identified Mindoro and particularly the mining site as extremely high conservation priority areas for plants and birds and terrestrial animals. In terms of importance level, the area belongs to extremely high terrestrial and inland water areas of biological importance. Moreover, the area under the Mindoro Nickel Project is at the heart of a once proposed Mangyan Heritage Park which is inhabited by enumerable species of flora and fauna many of which are considered endemic. Ö The loss of vegetation cover will directly affect forest species which is a home to many animals, wildlife and birds, particularly cuckoo doves, psittacines, hornbills, cuckoos and coucals, woodpeckers, and coletos, among others. It will affect frugivores, whose survival depends heavily on the existence of fruiting trees. The forest also serves as habitats for the insects and other prey on which insectivores and carnivores depend for their survival. Ö As mining causes loss of habitat and disturbance of wildlife, local extinction may occur either through emigration or death. Emigration to other habitats means an increase in competition within these habitats. Migrating animals driven out of their former habitats will now compete with the local population for the resources, which were once solely utilized by them. For the more sensitive species, or for those that are not able to compete, death is imminent. Similarly, those populations which cannot emigrate from the primary impact area may also disappear, or otherwise decrease in number. Either way, the gene pool will be reduced, decreasing the level of biodiversity. 7. ENVIRONMENTAL RISKS OF TAILING DAMS AND RESIDUE STORAGE FACILITY Ö The plant residue method of disposal is through wet disposal to a residue storage facility in a valley impoundment, with a dam wall to contain the residue.Arne Isberg, then Country Manager of Crew (now Intex), in his letter to then Secretary Heherson Alvarez dated June 19, 2001, objected vehemently to the prospect of constructing impoundment or land based tailings dam because of the tropical and seismic conditions in the Philippines "will always pose certain risks to life and property even with the best of design." He further emphasized his objection by asserting that: "An on-land impoundment would permanently occupy a large land area and there would always be a certain risk of failure/collapse that could result in substantial spillage. Ö "The main risk of the tailings pond would be siltation of fine particles into fish ponds, mangroves, fisheries, shell-fish, sea grass beds, corals and marine life; thus, even though its contents may seem harmless, care would have to be taken to ensure it would never leak."[6] 8. SELECTIVE IDENTIFICATION OF PRO-MINING MANGYANS COMMUNITIES AS DIRECT IMPACT AREAS WHILE EXCLUDING MANGYAN GROUPS AND COMMUNITIES WITHIN THE MINING CONCESSION WHO ARE OPPOSING THE PROJECT IN VIOLATION OF INDIGENOUS PEOPLES RIGHTS ACT PROVISION ON FREE, PRIOR AND INFORMED CONSENT Ö Secretary Heherson Alvarez, in his statement dated November 13, 2001, asserted that: "The MPSA area is covered by ancestral domain claims of not only the Kabilogan tribe but of other Mangyan tribes. The pertinent rules and regulations of the Indigenous People's Rights Act of 1997 provide that where a project affects a whole range of territories convening two or more ancestral domains, the consent of all affected Indigenous Cultural Communities Indigenous Peoples shall be secured. Aglubang has not secured such consent." Ö The other affected Mangyan communities near and within the mining concessions are: Cido, Lintadoy, Tulalong, Taluto, Garo, Malawaan, Dagang, Makabuhay, Siabo, Lontob, Bucayao, Tuyongan, Mabunga, Mangan, Sawiyen, Mariyan, Liwayen, Buraboy, Kaburo, Garason, Salyanay, Liyao, Syadon, Taguan, Centro, Kamilyan, among many other scattered communities. While Mangyan-Alangans in Oriental Mindoro, claiming CADC 024 overlapping with MPSA No. 167-2000-IV, are represented by Samahang Nagkakaisang Mangyan Alangan (SANAMA), while the Tadyawan communities are represented by Kapyan Agpaysarigan Mangyan Tadyawan (KAMTI), claiming CADC 085 which overlaps also with the mining concession, AMA No. IVB-103. Ö The Mangyan communities in Occidental Mindoro (within AMA No. IVB-101 and AMA No. IVB-103) are represented by its Alangan tribal organization, Samahan ng Sablayan at Sta. Cruz Mangyan Alangan (SASSAMA). It should be a source of concern that only a handful of Mangyan communities in Occidental Mindoro are identified as stakeholders to the project, considering that both SADAKI and KABILOGAN are mostly found in Oriental Mindoro, with very few member communities in Occidental side. Ö It can be surmised that since all of the those opposing organizations mentioned representing respective tribal communities have continuously expressed opposition to the project, they were not given recognition by the proponent, and even the NCIP of Occidental Mindoro chose to deny them due participation in the decision making process. Ö KABILOGAN and SADAKI, being pro-mining Mangyan organizations, organized by the company, in cahoots with the NCIP, represent only the minority of the stakeholders. The definition of "free and informed consent" requires that a pre-requisite condition of "consensus of all members of the ICCs/IPs" should be obtained. The insignificant number of KABILOGAN and SADAKI is far from being such. 9. IMPACT ON MANGYAN INDIGENOUS CULTURE, and META-ECONOMIC VALUE OF THE LAND Ö US engineering corporation Dames and Moore carried out a scoping report for the company in 1999, which identified several potential impacts that the subsequent Environment and Social Assessment (ESIA) would have to address. These included that "Mangyans' sacred places will be affected or destroyed by the construction activities . . . and by the project operation." Ö The traditional religion of the indigenous peoples upholds the inherent sacredness of all creation which had been bestowed by Ambuwaw with spirits. Alangans' cosmology and ritual practices attest to this continuing ecological belief. Thus, the land and the ecosystems in their ancestral domains are accorded with respect, and they are important, having value which is simply beyond any monetary equivalent. For the Alangans, nature is animated by spirits and must be treated with holy respect. The rivers are protected by the spirit of Alulaba. The forest and its diversity of plants are watched over by Kapwanbulod. The geo-ecological ethics of the Mangyan Alangans underlines most specifically the deep spiritual importance that their ancestral domains have for them . . . Thus, The large-scale mining will undeniably cause drastic impacts on the life of the Mangyans. Since the traditional culture of the Mangyans revolve around their relationship with their land, the entry of mining operation will change the very foundation of their distinct existence as indigenous people. The destruction of the land from where they get their sustenance both physically and spiritually could forever alter their way of life and their traditional values that are deeply rooted on their autonomy and in the interdependence of all life.[7] Ö Article 25 of the United Nations' Declaration on the Rights of the Indigenous Peoples explicitly provides that: "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard." 10. CORPORATE ELIGIBILITYAND DISCLOSURE OF CORPORATE STRUCTURE AND OWNERSHIP Ö In a memorandum submitted by then DENR Secretary Heherson T. Alvarez to President Gloria Macapagal Arroyo, dated April 11, 2001, he recommended that MPSA issued to Crew (now Intex) be revoked. One of the grounds for the cancellation was that Aglubang Mining has no proven track record. And under Section 27 of the Mining Act of 1995, (and in Section 38 of IRR) it is required that a mining applicant should be eligible - should possess a satisfactory environmental track record. Ö Then Secretary Alvarez noted the ineligibility of Aglubang for it "has no track record with the MGB. In fact, it was simply an assignee of an Exploration Permit." He further emphasized the doubtful credibility of Aglubang, thus: "Originally,Aglubang Mining has only One Million Peso of Authorized Capital Stock which was later on increased to P10 Million with paid up capital of only P2.5 Million . . . It is respectfully submitted that the financial capability of Aglubang Mining must likewise be reviewed." Ö The subsidiaries of Intex, namely, Aglubang Mining Corp. (AMC), Pili Point Corporation (PPC), Alag-ag Mining, Inc. (AMI), Shapa Holding Corporation, have dubious credibility as to their capability to engage in mining and processing of mineral ore, considering that they have no proven track record as required by the law. And it is perceived that the subsidiaries are owned and managed by one and the same company of Intex. Ö Thus, the corporate accountability should be clearly established. The status of Intex Resources Philippines, Inc. (IRPI), being a separate and distinct corporation from Aglubang Mining Corp. does not provide a transparent ownership structure to merit trust and to ensure clear and direct corporate accountability in environmentally critical project. Ö Moreover, Section 28 of the IRR of the Mining Act of 1995 requires that 60% of the capital must be owned by citizens of the Philippines. Intex Resources Philippines, Inc., being a wholly-owned foreign company controlled by publicly-listed Intex Resources ASA of Norway, can only own 40% of the project. Who owns the 60% share in Mindoro Nickel Project? 11. REINSTATEMENT OF MPSA BASED ON FALSE AND MISTAKEN LGU ENDORSEMENTS Ö DENR Secretary Michael Defensor, on November 10, 2005,issued an order giving clearance for the exploration activities of Aglubang Mining Corporation subject to the following conditions: that Aglubang shall pursue a comprehensive information, education and communication campaign; that exhaustive social preparation work be conducted to address the opposition to the project; and that necessary permits should be obtained prior to operation. The order of Defensor was based on the alleged endorsements by the local sanggunians of the municipalities of Socorro, Victoria, Pola. But said endorsements were later denied to have been issued by the concerned municipalities. Ö On January 2006, Victoria Resolution was passed reiterating the stand of the Municipal Government of Victoria against mining. All Sangguniang Bayan members voted against the project, and only one was in favor. Subsequently, on January 23, 2006, Municipal Resolution No. 06-06 was passed by the Sangguniang Bayan of Pola, Oriental Mindoro reiterating their strong opposition against the Mindoro Nickel Project. The resolution clarified that the earlier Resolution No. 05-2005, used by Aglubang Mining Corporation and also made a basis for endorsement by Secretary Defensor was actually not an endorsement, but only an expression of posing no objection to the company's request to conduct evaluation or feasibility study regarding the proposed establishment of processing plant and harbor facility in Pola. The Sangguniang Bayan believes that what happened is a case of "direct misrepresentation of the true intention of the said resolution." Ö On February 6, 2006, the Municipal Resolution No. 2005-21 of the Municipal Council of Socorro was passed denying the claim of DENR Secretary Defensor that the Municipality of Socorro is endorsing the mining project of Crew. On that same date, they also passed Resolution No. 2005-22, expressing their strong opposition to the proposed nickel mining in the island of Oriental Mindoro. 12. GOVERNMENT'S TAX INCENTIVES AND INEQUITABLE SHARING OF BENEFITS Ö The Mining Code was primarily intended to serve foreign interest and not the local communities and it is never meant to legislate equitable sharing of resources, but on the contrary, it guaranteed clear profit margin to mining corporations. In fact, section 80 of the Mining Act explicitly provides that the total government share in a MPSA shall be the excise tax. Ö The overly generous fiscal and non-fiscal incentives being given out by Mining Act and Omnibus Investments Act, Export Development Act and Special Economic Zone Act of 1995, reduce the tax obligation to minimal cost possible. Even the Bastes Commission reported that Lafayette Mining in Rapu-rapu, Albay was able to reduce its tax obligations by 91%! Ö In a recent news, Intex Resources was reported to be seeking PEZA perks and status. If this is granted, it will reduce all taxes of a registered company to just 5 percent of the gross earnings. And Mines and Geosciences Bureau'seconomics head, Glenn Noble noted that: "This means the national and local government will not receive the rightful taxes they should get from mining operations, including the 12 percent excise tax, community taxes and income taxes."[8] In the light of the foregoing and of many other issues and socio-environmental threats of mining, we are also concerned with the regulatory capability our national government institutions. As Bishop Warlito I. Cajandig noted: "Considering the situation of our country, it is impossible to have the so-called responsible mining because of the prevailing culture of corruption in the government - many are abusive of their powers, and many can also be bribed." Submitted for the consideration and guidance of the EMB and EIA Review Committee. HON. ALFREDO ORTEGA, JR.FR. EDWIN A. GARIGUEZ Municipal MayorMangyan Mission, Bishop Finnemann Center Victoria, Oriental MindoroCalero, Calapan City |
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